“Throughout history, it has been the inaction of those who could have acted; the indifference of those who should have known better; the silence of the voice of justice when it mattered most; that has made it possible for evil to triumph.”
Haile Selassie

Thursday, May 28, 2015

You heard the warning from this blog. Freedom Indiana, the leading group promoting LGBT rights in Indiana, made a foolish mistake this past legislative session attacking the Religious Freedom Restoration Act instead of working toward the expansion of Indiana's anti-discrimination law to include sexual orientation.

But was it actually mistake? After all, Freedom Indiana never seemed serious about derailing RFRA. In the successful attempt to stop the proposed constitutional amendment defining marriage between a man and a woman, FI began long before the session started and utilized grass roots opposition and touching personal stories. But when it came to the organization's opposition to RFRA, the organization didn't begin its opposition until the final weeks of the General Assembly, the timing of which (days before the NCAA Final Four) that seemed to be more about gaining publicity for the organization and aiding fundraising than defeating RFRA.

Undoubtedly Freedom Indiana has wise legal counsel who informed the organization's leaders that never in the 22 history of RFRA legislation has an anti-discrimination law ever been overridden by a RFRA. Yet the organization continued to sell the nonsense that Indiana's RFRA was somehow a "license to discriminate," a claim the media swallowed whole without a lick of proof. The media was more interested in repeating FI's "license to discriminate" nonsense that reporting on the scores of law professors and other legal experts, including supporters of LGBT rights, who came forward to explain how RFRA works, why it is needed, and that it has never sanctioned discrimination.

In its last minute, albeit well-timed, campaign, Freedom Indiana relied heavily on misrepresentations about the law, personal attacks on legislators and threats by corporate allies. Freedom Indiana's leaders acted as demagogues, people who "appeal to popular desires and prejudices rather than by using rational argument." In the process, FI received more publicity than its leaders could have ever imagined, a publicity aided by a sympathetic media too lazy to actually learn and report honestly about RFRA.

Sadly many well-meaning supporters of LGBT rights were duped by Freedom Indiana and fought valiantly against RFRA as if it actually had something to do with the cause. FI's strategy, in fact, was actually extremely harmful, burning legislative bridges and alienating possible future supporters of a state-wide sexual orientation anti-discrimination law all in the course of fighting a law completely irrelevant to LGBT rights.

Today those who support LGBT rights begin to find out the price of FI's self-serving RFRA strategy. The Legislative Council, a group of top lawmakers from both the House and Senate, approved 40 topics for work by summer study committees. Expanding Indiana's anti-discrimination law to include sexual orientation was not one of them. That is certainly a precursor to the lack of interest Republicans legislators have in taking up the issue after the bruising RFRA fight.

Freedom Indiana's leaders and its allies repeatedly lied about RFRA, personally attacked legislators and people who simply wanted to protect religious freedom, and engaged "corporate partners" to lodge threats and denigrate the State of Indiana. Now they come back to the General Assembly asking for a favor, i.e. that Indiana's anti-discrimination law be expanded to include sexual orientation. It doesn't take a political scientist to conclude that the foolish RFRA strategy is going to make that sell a difficult one.

The cause of LGBT rights was set back several years by the RFRA debate and the people to blame for that are the leaders of Freedom Indiana.

Paul, I respectfully disagree with this and your endless commentary on the RRFA. First of all, you may have a point that the actual law (and fix) may have not done what their supporters and opponents each claimed....but that's not the point....the point is that in politics, perception is everything -- and the whole rationale for this law in the first place was that it was a craven attempt by the Republicans in the legislature and the office of Governor Mike Pence to provide a bone to the religious right so that Eric Miller, Curt Smith and the Indiana Taliban could send out fundraising missives to their flock on how wonderful they were in protecting Hoosiers from gay marriage. Case in point -- Eric Miller's awful web posting on how the law would protect florists and bakers from the scourge of gay marriage. That's what the whole episode was all about -- you may be right -- the original law (and the fix) really did nothing. Besides, in today's litigious society, it would have likely ended up in the courts (and may still)

Second, your latest point on how the failure of the Legislative Council to authorize a study on discrimination statutes is a stretch, to say the least. The cynical part of me says "what's to study?" I used to work in the Indiana General Assembly, and used to attend many interim study committees -- I remember one year in the 1980's when a committee failed to issue a report because they failed to meet -- never had a quorum. Yes, perhaps times have changed, but to suggest that this is a defeat for the gay rights/anti-discrimination movement ignores the large issue that Indiana will likely address this issue next session with or without a study committee. If you ask me, the Legislative Council did all of us a favor by not setting up a committee, what with all the pandering and politics that would take place down the road.

Paul, I like and respect many of your views that you express in this blog, but you have, IMHO strayed off the reservation on two issues: the RFRA and Climate Change. Some day I hope to welcome you to the 21st Century.

Paul, not even the most naive person would believe that if RFRA had not been amended or opposed that the Republican super majority in the legislature would have voluntarily entered a summer study of LGBT discrimination. Micah Clark, Eric Miller and Advance America made it very clear that RFRA was about protecting businesses who did not want to serve the GLBT community.

Paragraph 1: Who cares what some people thought the law does if it doesn't actually do that? Who cares what the motivation for some people for supporting the law, if in fact the does some very good things like protect religious freedom? If Eric Miller is right, show me one case where a RFRA has ever overridden an anti-discrimination law. Opponents of RFRA could never point to a single case where that's happened because it has never happened.

I do agree the legislature will consider a sexual orientation anti-discrimination bill next year. A Democrat will introduce one and it will go to a committee where the Republican chair will consider it dead.

Paragraph 2: I could not disagree more. It's not a black and white at all. The question is where you draw the line in terms of providing a good or service. For example, requiring a restaurant to serve a gay couple is a huge difference from requiring that restaurant to cater and serve at that couple's wedding reception. Undoubtedly the legislature is going to draw some lines and where they are will be the devil in the details. It's a moot point though as there is no mood at the legislature to expand the civil rights law to include sexual orientation. It's going to take a few sessions for the wounds to heal from Freedom Indiana's ridiculous campaign against RFRA.

Paragraph 3: Actually I am a fervent believer in climate change. The planet's climate has been changing for 4.5 billion years and I have no doubt that it continues to change. What I don't believe in is the "man is causing dangerous global warming that is going to destroy the planet" theory.

So Eric Miller defines legislation for the courts? Of course not. Find me one case where a RFRA anywhere has overridden an anti-discrimination law regarding providing goods or services. You can't because there has never been one in the 22 year history of the law. If LGBT rights supporters are going to claim RFRA is a "license to discriminate" they should be able to provide at least one example.

You guys are making stone age arguments. Please join the 21st century. You are embarrassing yourselves.The Republicans know that this is a lost cause. There will be changes made or the Democrats will win big.

Anon 1:42, what's the "stone age" argument? That RFRA has nothing to do with overturning anti-discrimination cases? Fine, point to that 21st Century case where RFRA actually did that. Tell you what, I'll give you another century as well. Point to a 20th Century case where RFRA actually overturned an anti-discrimination law.

Why don't you just admit that the "license to discriminate" campaign was simply a lie?

Anon 2:25 brings up a good point: if the power to regulate marriage between adults ebbs, there is no logical or legal reason why plural marriage should be prohibited. To be sure, some legislators will relish the idea of having 3 or more parents responsible for child support instead of only 2.

About Me

I have been an attorney since the Fall of 1987. I have worked in every branch of government, including a stint as a Deputy Attorney General, a clerk for a judge on the Indiana Court of Appeals, and I have worked three sessions at the Indiana State Senate.
During my time as a lawyer, I have worked not only in various government positions, but also in private practice as a trial attorney handing an assortment of mostly civil cases.
I have also been politically active and run this blog in an effort to add my voice to those calling for reform.